Hutton v Hutton

• Jurisdiction: South Africa
• Judge: Jones J
• Judgment Date: 20 November 2008
• Docket Number: 1619/2008
• Court: South Eastern Cape Local Division
• Hearing Date: 04 November 2008
• Citation: 2008 JDR 1451 (SE)

Jones J:

[1] The parties in this matter are embroiled in divorce proceedings. This is an application by the applicant-wife, the plaintiff in the divorce, for a contribution towards costs in terms of rule 43.

[2] The pleadings are now closed and reveal that three issues remain in dispute, namely maintenance for two of the children, maintenance for the applicant, and questions involving the equitable division of the matrimonial property. It seems to me that the first issue is likely to be settled. The second and third issues are related, and the parties are agreed that they will probably have to go to trial on a defended basis in respect thereof. This has caused the applicant to apply for a substantial contribution in the sum of R90 000-000, which includes

2008 JDR 1451 p2

Jones J

the costs of the first day of the trial, the costs of a forensic investigation into the assets of the parties, the costs of valuing their assets, and the costs of determining whether the assets held by a family trust should be deemed to be part of the respondent's estate for the purposes of an order for redistribution of matrimonial assets. There is no dispute that an investigation into some at least of these issues is necessary. It will be a lengthy, complicated and expensive investigation. For these reasons the applicant alleges that she is entitled in law to a contribution towards her costs in the amount claimed.

[3] The respondent disputes that he is liable to make a contribution and, further, that he is able to afford to make one. His contention is that the applicant is possessed of sufficient assets to make arrangements to pay her own costs in full.

[4] There are a number of disputed matters in the rule 43 papers, which are somewhat lengthier and more involved than is usually the case. This may possibly be thought by some to be a contravention of the rule requiring that the affidavits be in the form a declaration and plea. Neither party has, however, argued before me that I should follow Visser v Visser 1992 (4) SA 530 (E), where the court refused to hear the application on grounds of the prolixity of the papers. I must do the best I can in the circumstances to come to a fair, though perhaps rough and ready, solution to the problem of placing both parties in a position to present their cases properly before the court. To that end I have been referred to the judgments in this division of Chasen v Chasen (unreported 2 August 1999 SECLD No 1623/99) and...